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Tsilhqot’in Supreme Court decision will define Canada’s future

Northern Gateway project suddenly faces a new hurdle – “occupation”

Tim Querengesser is senior editor with Alberta Venture. Email Tim

Jun 26, 2014

by Tim Querengesser

As British Columbia goes, now so too goes Canada. Today’s historic Supreme Court decision, which thanks to a B.C. First Nation legal challenge establishes a precedent that Aboriginal title can flow from unending “occupation,” underlines that answers to legal questions in B.C. will have ramifications for the rest of the country. The reason, of course, is the Northern Gateway pipeline and the additional challenges that its proponents now face, thanks to strengthened Aboriginal claims to land title.

In a unanimous decision, Canada’s highest court ruled today that the Tsilhqot’in Nation, located in the B.C. interior, should be allowed to appeal a 2012 B.C. court decision that granted it a land claim to much of its traditional territory (unlike much of Canada, many First Nations in B.C. have not signed treaties) but dismissed its claim to 44,000 hectares of land that had been developed by a logging company. Since 1983, that land has been the centre of a legal dispute between the Tsilhqot’in, a nation of six Aboriginal bands and about 3,000 members, and the company.

The “heart” of the Tsilhqot’in appeal, according to the decision written by Chief Justice Beverley McLachlin, is what constitutes Aboriginal “occupation” of land. McLachlin writes in the decision that title flows from occupation. But just what is occupation? As McLachlin writes, “Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.”

In plainer terms, McLachlin’s summary of the court’s decision says Aboriginal nations don’t need to make ‘improvements’ (buildings or other changes) to claim a title to land. Indeed, the court criticizes the B.C. court’s view of Tsilhqot’in title as “primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title.” Instead, with today’s decision, Aboriginal nations now have a three-point legal test to assert occupation over an area and thus a title claim to it – occupation, continuity and exclusivity.

It’s that last point, exclusivity, that’s the stickler for the Northern Gateway project. The court decision notes that the Tsilhqot’in has long required any visitors to the land in question to gain its formal permission to enter it or use it. What does this mean? “The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified.”

As McLachlin writes, Ottawa retains significant powers over land, even in the face of such Aboriginal title. To override this form of title, however, requires the government to justify that its actions are in the broader public interest. If groups want to develop on land that is held with Aboriginal title, McLachlin writes that they must obtain consent. If that consent is lacking, Ottawa can override it but must show it consulted and attempted to accommodate concerns.

As a result of today’s decision, if Aboriginal governments opposed to the Northern Gateway project hope to stop it, the most concrete way to do so appears to be to assert occupation and with it Aboriginal title. Aboriginal title in and of itself is not going to prevent the project from proceeding, as Enbridge and all other players can negotiate accommodations to reflect this title and Ottawa can over-rule such assertions for projects in the national interest. What Aboriginal title will do, however, is give those First Nations along the proposed route, and especially those at the coast vehemently opposed to an oil pipeline, yet another legal tool. And it will add another wrinkle to what has always been the ultimate legal test that the project has to pass when it comes to Aboriginal opposition and decisions taken in the national interest that over-rule such opposition – the duty to consult.

One Response to Tsilhqot’in Supreme Court decision will define Canada’s future

  1. Arno Kopecky says:

    Great analysis. This is definitely a major new headache for Enbridge and the federal government as far as Northern Gateway goes. But while it weakens their hand, it probably won’t change their legal strategy all that much when the inevitable court cases pitting First Nations against Enbridge begin. This ruling still lets the federal government invoke the “public interest” if it wants Northern Gateway (or any other project) to proceed over the objections of First Nations whose titled land the pipeline & tankers will traverse. This public interest is precisely what the 2 years of public hearings and subsequent Joint Review Panel’s approval of the project purported to establish – the Joint Review Panel declared Northern Gateway to be in the national public interest, and now the federal government can take that assertion to court. The fact that the public hearing process itself was quite arguably flawed, and that the federal government declared Northern Gateway to be in the national interest before the public hearings even began, will likely be among the First Nations’ rebuttals…so, as far as I can tell, there is still much to be decided in court. But there’s no question the odds have just gotten longer for Northern Gateway to proceed…